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“The Dumbest Thing” Kagan Ever Read Was a Position Held by Justice John Paul Stevens

The Secular Coalition for America expressed great concern over President Obama’s choice of Solicitor General Elena Kagan for the Supreme Court, as she has sided with the likes of Justice Antonin Scalia on an issue of church-state separation, and has characterized the reasonable positions of justices such as John Paul Stevens and Thurgood Marshall—positions she herself helped to author—as “dumb.”

In a 1987 dissent in the case of Bowen v. Kendrick, Justice Stevens, along with three other highly respected justices, addressed significant problems with a statute which gave government funds to religious organizations which in turn “educated” teens about sex and pregnancy. The justices understood that such a statute would inevitably lead to sectarian organizations using public funds to act on their religious beliefs, in contradiction with good public health policy. The justices wrote, “Where the targeted audience is composed of children, of course, the Court's insistence on adequate safeguards has always been greatest.” The concerns expressed by these justices were well-founded, as one group used government funds to teach children about sex with the express mission “to make themselves better instruments in God's plan," and as "facilitat[ing] the evangelization of homes."

The Secular Coalition for America is highly disappointed by Ms. Kagan’s response to a Senate Judiciary Committee inquiry during her Solicitor General confirmation hearing. Ms. Kagan characterized a memo she authored pertaining to Bowen v. Kendrick, while serving as a law clerk for Justice Thurgood Marshall, opposing the federal funding of religious organizations as “the dumbest thing I ever read” and “deeply mistaken.”

In the memo she stated, “…when the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.” The Secular Coalition for America agrees with her original opinion as written.

Sean Faircloth, Executive Director of the Secular Coalition for America, said, “What Ms. Kagan refers to as the dumbest thing she has ever read is essentially what became the dissenting opinion in the close 5-4 Bowen v. Kendrick case—a dissent supported by the great Justice John Paul Stevens, along with her own boss, Justice Thurgood Marshall, as well as Justices William Brennan and Harry Blackmun. Justice Scalia was in the majority. It is deeply discouraging to see Ms. Kagan cavalierly label reasoning shared by Justice Stevens as ’dumb,’ and promote the sectarian philosophy of Justice Scalia.”

"While there is still much to learn about Ms. Kagan’s views on other issues important to Secular Americans, we hope that there will be a very thorough and pointed questioning of Elena Kagan on church-state issues,” added Faircloth. “Ms. Kagan’s willingness to side so quickly with Justice Scalia and so casually reject the views of these other highly respected justices is deeply disturbing to anyone who cares about the true founding principles of our nation.”